Plaintiffs’ lawyers currently are threatening employers that recruit new employees via social platforms—Facebook, LinkedIn, etc.—with age discrimination class action lawsuits. The plaintiffs’ lawyers aggressively demand an immediate response to their letter, production of information related to the online recruitment efforts, and a quick resolution of their alleged claims (i.e., pay a substantial settlement). Class-wide liability, were the claims to be successful, could be substantial, so this issue warrants immediate attention even if you have not yet been threatened with litigation. We have analyzed the possible legal claims and have developed a method to assess an employer’s potential liability.

What claims can be made from social media recruiting?

Employers recruiting through social media can, depending on the platform, select to whom the recruitment advertisements are directed. For instance, Facebook ads can be targeted to users aged 18 to 45. Facebook’s recent ad transparency measures—adopted in the wake of the Russian Facebook scandal in last year’s elections—allow a Facebook user to see why a company has selected that user for the ad (e.g., “One reason you’re seeing this ad is that [Company] wants to reach people ages 18 to 45.”). The targeting of recruitment ads at younger people and the language in the transparency notice are the focus of the claims of age discrimination in hiring decisions.

Do the claims have any merit?

Plaintiffs’ lawyers allege that the online recruiting violates laws against age discrimination in two ways – method and content. First, they allege that the recruiting method of focusing on younger social media users intentionally excludes older potential applicants from the opportunity to learn about and apply for open positions. Second, they allege that the advertisements’ content contains age-biased messaging. In particular, they claim Facebook’s transparency message that accompanies the ads includes discriminatory language showing a preference for younger workers, even if the ad itself is age-neutral.

The strength of these claims depends upon a number of factors unique to each employer and their online recruitment program. These include, among other things:

the content of your ads

the method and extent of targeting ads based on age demographics

your overall recruitment program (online and otherwise)

the return-on-investment from various aspects of the recruiting program

statistical comparisons between your applicant pool and the employee population

What actions should you take now?

If you have not yet received a letter from plaintiffs’ lawyers, you should quickly review the content of your online recruitment ads and determine whether your online program includes ads directed toward particular demographics. This may or may not be a simple task. The targeting tools for the various online recruitment platforms are not always apparent, and decisions regarding your targeting may have been made by individuals making the ad-buying decisions.

If you have received a letter, you know that the plaintiffs’ lawyers are demanding immediate production of voluminous information relating to your online recruitment program and a commitment to resolve the claims by settlement in order to avoid costly and time-consuming litigation. Before communicating with the plaintiffs’ lawyers, you should:

obtain legal counsel to strategize the best response, which may or may not be a refusal to produce anything;

thoroughly audit your online recruiting program to assess potential liability and defenses; and

if called for, run the necessary statistical comparisons to gauge the best course of defense.

We recommend that all employers using social networks to sponsor ads review their practices immediately, as this will become a growing trend.

For more information on defending against age-discrimination claims, contact Joel O’Malley at 612.305.7747 or jomalley@nilanjohnson.com.